DOJ Rules EEOC's Disparate Impact Guidelines Unconstitutional, Reshaping Hiring Liability Landscape
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The News
The U.S. Department of Justice issued a 25-page opinion on June 10 concluding that the Equal Employment Opportunity Commission's disparate impact guidelines are unconstitutional, as reported by Ginger Christ in HR Dive. The opinion argues that the guidelines 'contemplate liability based on disparate effects alone, without regard to an employer's likely intent,' and that businesses should be able to hire based on performance 'without fear of violating Title VII.'
The DOJ opinion directly implements President Trump's April 2025 executive order directing federal agencies to stop enforcing disparate impact liability. The EEOC's subsequent June 4 vote to rescind its Biden-era strategic enforcement plan and adopt a Trump-friendly National Enforcement Plan signals that the agency will comply. Acting Attorney General Todd Blanche said the ruling 'will now allow businesses to hire based on performance.'
However, the legal landscape is far from settled. Illinois has passed its own bill banning disparate impact discrimination in the opposite direction, and a group of former EEOC and DOL officials have urged employers to ignore the executive order, calling it inconsistent with 'decades of legal precedent.'
Why It Matters
For TA leaders, this creates a high-stakes compliance dilemma. On one hand, the DOJ opinion reduces the risk of using screening tools — cognitive assessments, criminal background checks, SAT scores — that have historically triggered disparate impact scrutiny. On the other hand, a growing number of states are passing their own laws that reimpose those protections, and a future administration could reverse this opinion entirely.
The practical question for a large enterprise is which jurisdiction's rules to follow. If you operate across multiple states, the safest path is still the most conservative one: validate your AI screening tools for adverse impact regardless of federal policy, because state attorneys general and class-action plaintiffs aren't bound by a DOJ opinion. The job of TA hasn't changed — but the compliance risk map just got more complicated, not simpler.
Taking Action
All action is situated in your corporate context. These are starting points, not prescriptions — choose what fits.
Connect
Who to talk with in your enterprise
Your legal/compliance team — Ask them for a jurisdictional risk assessment: which states where you operate have their own disparate impact statutes or bills in play? Build a matrix that maps hiring tools to state-level risk, not just federal compliance.
Your head of talent analytics — Have them run an adverse impact analysis on your current screening funnel, even if the DOJ opinion reduces federal pressure. Your internal data — not the legal landscape — should drive decisions about fair hiring.
Your VP of HR technology — Ask your ATS and AI screening vendors for their latest adverse impact audit documentation. Vendor claims about 'bias-free' AI need third-party validation regardless of the current DOJ position.
Inspect
What to take a closer look at
This week, pull your most-used screening and assessment tools — especially any AI-powered candidate ranking or skills-assessing modules — and check whether you have a current adverse impact audit for each one. If you're relying on the DOJ opinion as cover, you need to know which state laws still apply. Specific tool to look at: Your AI screening vendor's bias audit dashboard or fairness report — most major vendors (Eightfold, HireVue, Pymetrics, Modern Hire) offer these but few TA teams actually review them regularly.
Reflect
What to think about more deeply
The most interesting question isn't whether disparate impact liability is constitutional — it's whether any organisation, regardless of legal obligation, can afford to ignore the reputational and hiring-market consequences of screening tools that produce systematically different outcomes? If public trust in hiring fairness collapses, do the courts even matter?